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“It’s about giving people back control over how they appear in the digital world.” – Jakob Engel-Schmidt, Danish Minister of Culture
Introduction: The Identity Crisis in the Age of Generative AI
Traditional Intellectual Property Law, largely designed around the concept of human authorship, struggles to contain the economic and reputational damage caused by AI-generated deepfakes. The core challenge lies in the nature of the deepfake itself: it imitates the persona—a face, voice, or style—which is fundamentally biological and common law in nature, not an "original work" protected by copyright.
One step ahead of expectations, the misuse of people's images through artificial intelligence has drawn more attention lately. Jumping from 2019 to 2020, deepfake video numbers rose ninefold- data backed by the World Economic Forum. Take Scarlett Johansson: in 2023, her face and speech appeared in a chatbot ad built by AI, though she never agreed. Later, by 2024, claims surfaced that OpenAI shaped its ChatGPT character Sky using her voice, even after she refused. Behind these moments lies a widening gap - between creative influence and outright copying - as systems now mimic humans closely, needing no real sample at all. Some countries are moving in different directions lately. Instead of waiting, Denmark has floated a proposal giving people automatic rights to how they look, sound, and carry themselves by law.
This implies that deep fakes might be removed even without any actual footage, and people may pursue legal remedies just for being mimicked by AI. Many nations consider deep fakes to be a matter of privacy or defamation. Denmark would be the pioneer in recognizing your image as intellectual property, similar to owning a song or a photograph.
Denmark's initiative isn't solely focused on technology regulation; it's also about restoring people's control over who represents and speaks on their behalf.2
The Danish proposal to grant "copyright-like" protection over an individual's face, voice, and personal likeness represents a paradigm shift from viewing these attributes merely as a matter of privacy to classifying them as a proprietary intellectual property asset.
India's legal framework for protecting an individual's likeness, particularly against AI-generated deepfakes, is currently a hybrid system that relies on constitutional rights, common law precedents, and various statutes, but it lacks a single, dedicated IPR statute like the one being proposed in Denmark.
Relevant Indian IPR and associated laws
In India, protection against the misuse of likeness is currently scattered across several legal instruments, forming the basis of Personality Rights.
Constitutional and Common Law Principles (The Foundation)
The primary legal shield against the unauthorized commercial use of a person's likeness, including AI deepfakes, is the Right of Publicity, which in India, is rooted in the Constitution.
A. Statutory Basis and Interpretation
- Right to Privacy and Dignity (Article): Supreme Court’s notable decision in S. Puttaswamy v. Union of India (2017) established the Right to Privacy as a basic entitlement found in Article 21. Judicial bodies now interpret this right to encompass a person's right to dignity and the right. People manage how they present themselves online. This forms the bedrock for protecting an individual's persona from digital misuse that harms their reputation or dignity.
“Akshay Hari Om Bhatia v. John Doe, Interim Application (L) No. 33184 of 2025: Bombay High Court: In the present application, actor Akshay Kumar sought protection of his personality rights, privacy rights, and the right to live with dignity as guaranteed under Article 21 of the Constitution, as well as protection of his moral rights under the Copyright Act, 1957. A Single Judge Bench of Arif S. Doctor, J., while granting ex parte interim relief, held that Akshay Kumar possessed an inherent and enforceable right to control, protect, and commercially exploit his personality, and that any unauthorised use constituted a violation of both his personality/publicity rights and his fundamental rights under the Constitution. The Court, therefore, directed that such content be removed from the public domain immediately, in both Akshay Kumar’s and the larger public interest.”
- Common Law Right of Publicity (Tort Law): This common law right, evolved through judicial precedent, allows an individual, particularly a celebrity whose persona has commercial value, to prevent the unauthorized commercial exploitation of their name, image, voice, or distinctive attributes.
ICC Development (International) Ltd. v. Arvee Enterprises: The Delhi High Court affirmed “Publicity right has evolved from the right to privacy and can be in here only in an individual or in any indicia of an individual's personality like his name, personality trait, signature, voice, etc. Any effort to take away the publicity right from the individuals to the organizer of the event would be violative of articles 19 and 21 of the Constitution of India. The publicity right vests in an individual and he alone is entitled to profit from it."
B. Landmark Case Law on AI Content Creation (Judicial Activism)
Indian High Courts have been proactively issuing injunctions (court orders to stop an action) against AI-generated content, expanding the scope of Personality Rights to digital imitations:
Arijit Singh v. Codible Ventures LLP, 2024 SCC OnLine Bom 2445 “Making AI tools available that enable conversion of any voice into that of a celebrity without their permission constitutes a violation of their personality rights and such tools facilitate unauthorized appropriation and manipulation of a celebrity’s voice, which is a key component of their personal identity and public persona”. AI tools infringe an individual's right to control and protect their own likeness/voice’ Bombay HC grants ad-interim injunction in favour of Arijit Singh to protect his personality rights.”
Suniel V Shetty v. John Doe S Ashok Kumar, 2025 SCC OnLine Bom 3918: Defendant 1 was circulating AI-generated images/ deepfakes falsely depicting Suniel Shetty and his family members in obscene and salacious manner on various social media platforms. The present application was filed by Suniel Shetty seeking protection of his personality rights, privacy rights and the right to live with dignity guaranteed under Article-21 of the Constitution and as well as for the protection of his moral rights under the Copyright Act, 1957. Bombay High Court held that Suniel Shetty had made a prima facie case and if the ad-interim relief was not granted, he would suffer irreparable injury and harm. Therefore, the Court granted ex-parte interim relief to Suniel Shetty, restricting the defendants from utilizing or infringing uniquely identifiable attributes, including through Artificial Intelligence generated content, deepfake videos, voice cloned audio, etc. The Defendants were also directed to take down/remove/disable access to such infringing listings/pages/content.
Aishwarya Rai Bachchan v. Aishwaryaworld.com, 2025 SCC OnLine Del 5943: The Court opined that the misuse of Aishwarya Rai’s name, image, likeness and other elements of her persona clearly constituted infringement as the adoption of the aforementioned attributes without any authorization, would inevitably cause confusion and create a perception of endorsement by her. Thus, the Court held that a prima facie case had been established and the balance of convenience was also in Aishwarya Rai’s favour. Further, irreparable loss, damage and injury would be caused to her goodwill, reputation and prestige if the interim injunction was not granted immediately. “When the identity of a famous personality is used without their consent or authorization, it may not only lead to commercial detriment to the concerned individual but also impact their right to live with dignity.”
Delhi HC grants interim injunction protecting Aishwarya Rai’s Personality Rights; Directs blocking of all infringing websites, platforms and YouTube channels.
Intellectual Property Laws (Indirect Protection)
While the face itself is not a copyrightable work, the misuse of a voice or performance is indirectly addressed by existing IPR law.
- The Copyright Act, 1957:
Sections 38 and 38A: “Performers Rights” grants special rights to performers over their performance e.g., an actor's delivery, a singer's rendition. AI voice cloning directly threatens this right.
Section 57: “Moral Rights” this section gives authors/performers the right to claim authorship and, critically, the right to restrain or claim damages for any distortion, mutilation, or modification of their work which is prejudicial to their honour or reputation. This provision has been used to address AI voice cloning where the AI-generated content is a derogatory change to the artist's original work or performance identity.
In a case involving legendary singer Asha Bhosle v. Macy Inc, 2025 SCC OnLine Bom 3485: The court intervened after reports of AI tools cloning her voice for sale, observing that such acts violated the singer's dignity and economic rights.
“Asha Bhosle has the right to control the use of all facets of her personality since the same formed part of her exclusive Personality Rights and the misappropriation of the same without her consent was liable to be restrained not only on the basis of the publicity rights but also on the basis of the tort of dilution, more particularly, tarnishment.”. A Single Judge Bench of Arif S. Doctor, J., Bombay High Court while observing that unauthorizedly using Asha Bhosle’s persona amounted to infringement of her Personality Rights, granted a temporary injunction in favour of Asha Bhosle and directed that any violative content be taken down and the infringing websites, platforms and YouTube channels be blocked.
- The Problem of Authorship: Indian Copyright Law is human-centric. It defines an "author" as a person, leading to the challenge that purely AI-generated content may not qualify for copyright protection unless a human can prove they exercised "creative control". This gap is what the Danish law attempts to fill by making the likeness itself, rather than the AI output, the protected subject matter.
- The Trade Marks Act, 1999: The likeness, name, or image of a person can be protected if it functions as a source identifier for goods or services. Misuse by AI or others can lead to a claim of 'passing off' or dilution (Section 29), preventing a misleading association between the individual and a product/service.
Digital And Data Laws (Specific Deepfake Remedies)
Information Technology (IT) Act, 2000 (and Proposed IT Rules Amendments):
Section 66 D: This penalizes cheating by personation using a communication device. It has been interpreted to encompass offenses where an individual's image or voice is used improperly by artificial intelligence systems when tricking people.
Information Technology Rules, 2021 (Proposed Amendments, October 2025):
New proposal from Ministry of Electronics and Information Technology - system of rules exists to oversee material created by synthetic means. The government is tackling the deepfake problem through amendments to the Information Technology (IT) Rules, 2021, by shifting accountability onto the technology platforms.
Mandatory Labelling: To address deepfakes the draft rules mandate AI content labelling for all synthetically generated content. Furthermore, social media platforms (Intermediaries) will face loss of 'safe harbor' immunity (Section 79 protection) if they fail to employ "reasonable and appropriate technical measures" to verify and act against deepfakes.
User Declaration: Users uploading content on significant social media intermediaries (SSMIs) must self-declare whether their content is synthetically generated.
Intermediary Accountability (Loss of Safe Harbor): Intermediary Platforms Lose Protection If They Fail To Act "reasonable and appropriate technical measures" to verify and label when platforms host AI-generated material, they might no longer be protected by Section-79. This shift happens because automated systems blur the line between neutral hosting and active involvement. Responsibility could transfer to the service provider once editorial control is detected. Courts may see algorithmic curation as a form of participation rather than passive transmission. As a result, immunity protections start to weaken under current legal frameworks, the IT Act came into force during the year 2000. It set rules for digital interactions within the country, shifting responsibility which lands heavily on companies such as Youtube and Meta instead Start by spotting deepfakes early through careful monitoring. Then eliminate them using precise digital tools.
Digital Personal Data Protection (DPDP) Act, 2023: Because the DPDP act requires clear permission before personal information is used, companies must first ask individuals. Only after someone agrees may their details be processed under this law. when consent isn’t obtained, handling such data becomes unlawful. Where rules are broken, penalties follow without exception. Though flexibility exists in how requests appear, clarity remains required. If a person withdraws approval later, further use stops immediately; biometric details, alongside facial information, often find their way into AI systems that misuse them. These technologies sometimes exploit personal features without consent protection begins when someone’s data is shielded from improper use by others digital identity.
The Danish Paradigm: Likeness as Intellectual Property
Unlike India’s approach of responding through court-ordered remedies grounded in individual entitlements, Denmark’s suggested law takes a preventive path shaped by collective duties built to anticipate needs, this framework operates ahead of challenges in digital spaces by redefining how intellectual property rights are approached and a person's image treated as property under law.
A. Amendment to the Copyright Act (Ophavsretsloven)
The proposal formally titled "Proposal for an Act to Amend the Copyright Act (Introduction of a Performance Protection and Protection against Digitally Generated Imitations, etc.)," introduces two key protections:
- General Protection Against Realistic Digital Imitations § 73a stands out as the key element. This part carries more weight than others. Everyone, no matter their nationality, receives safeguarding under these rules. Protection extends beyond borders, covering individuals regardless of origin. Foreigners included - rights apply equally across the board. Nationality makes no difference when it comes to being shielded by law. People everywhere fall within its reach, simply by being human the distribution of realistic digitally generated imitations of their personal features like how someone looks, sounds, or moves - along with anything else that helps recognize their features.
- IP-Like Enforcement: IP-Like Protection works similarly to copyright, so enforcement follows comparable principles. Because of it, people can seek court-ordered removals or file legal claims for damages caused by use without permission, not needing to prove defamation, privacy damage, or monetary setback.
- Protection of Performing Artists (§ 65a): This section gives performing artists’ clear rights over digital copies that mimic their style or performance identity. No one can share these imitations without permission.
- Both protections explicitly require explicit consent for public dissemination. Crucially, the rights last for 50 years after the death of the imitated person or artist, establishing it as a transmissible property right similar to other IPR assets.
B. Balancing Rights
The Danish proposal adds some important exceptions: it makes room for caricature, satire, parody, pastiche, political or social commentary, and other artistic works, all to protect freedom of expression. But if someone uses these forms to spread misinformation, those exceptions don’t cover it.
Conclusion
The two models highlight a fundamental tension in legal philosophy: Is a person's likeness primarily a fundamental right to be protected by the State (India), or an economic asset to be controlled by the individual (Denmark)? Indian courts have shown remarkable judicial flexibility in tackling deep fakes but the reliance on litigation means the remedy is expensive, time-consuming, and reactive. Every celebrity, or even an ordinary citizen, must initiate a separate lawsuit to defend their persona. The Danish model offers a statutory, preventive framework that is easily translatable into platform compliance policies. By defining likeness as a protected asset with a clear post-mortem term, it resolves the fundamental IPR gap in India: the inability to claim ownership over one's own identity outside of a "performance" or "commercial endorsement." The proposed amendments to the IT Rules, 2021 in India, particularly the mandatory labelling and enhanced intermediary liability, represent a strong regulatory response to the dissemination of deepfakes, but they do not grant the individual a proprietary right over their likeness.
India’s powerful judicial precedents have paved the way for robust protection, but true "digital self-ownership" necessitates comprehensive legislative action. Adopting a model similar to the Danish proposal—statutorily recognizing the digital likeness as a personal, transmissible IP asset—would provide India's citizens with a clear, inexpensive, and proactive civil remedy, moving the legal framework from a reactive shield to a preventative bulwark against the misuse of AI.
References
- The National News Channel UAE
- Constitution of India, 1950
- (2017) 10 SCC 1
- https://www.scconline.com/blog/post/2025/10/20/bombay-hc-condemns-akshay-kumar-deepfake-video/
- 2003(26) PTC 245
- https://www.scconline.com/blog/post/2024/08/02/bomhc-grants-ad-interim-injunction-to-arijit-singh-to-protect-his-
- personality-rights/
- https://www.scconline.com/blog/post/2025/10/15/bom-hc-grants-ad-interim-relief-to-suniel-shetty-in-personality- rights-case/
- https://www.scconline.com/blog/post/2025/09/12/del-hc-protects-aishwarya-rais-personality-rights/
- https://www.scconline.com/blog/post/2025/10/03/bombay-hc-grants-interim-injunction-to-asha-bhosle- protecting-her-personality-rights-orders-blocking-of-infringing-websites-platforms-and-youtube-videos/
- Proposal for the Act amending the Copyright Act (Introduction of performance protection and protection against digitally generated imitations, etc.)
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